is he my son or not?

[Ronald and Elvira 0]

How would my son be defined as far as a visa would go?

My wife was lets say taken against her will during our engagement. Then We married On Dec 8th 2008 and My son was born on December 18th 2008. I know he is not my natural child but because he was born after our marriage my name is on his birth certificate as the father

I am having a hard time finding any info that covers his relationship to me for immigration purposes. Would he be considered my son or my stepson and if so do i need to file an I864W instead of an I864?

[M J Woods 1]

How would my son be defined as far as a visa would go?

My wife was lets say taken against her will during our engagement. Then We married On Dec 8th 2008 and My son was born on December 18th 2008. I know he is not my natural child but because he was born after our marriage my name is on his birth certificate as the father

I am having a hard time finding any info that covers his relationship to me for immigration purposes. Would he be considered my son or my stepson and if so do i need to file an I864W instead of an I864?

My short answer is, I have no idea. But just reading what you wrote, it seems to me that if your name is on his birth certificate as the father, then legally, you're his father. Not his stepfather or his adoptive father but his father. As far as I know, the U.S. government doesn't do any sort of DNA testing on the children of U.S. citizens entering the country. I would assume you could just go ahead and file any paperwork you're planning on filing as his father, since according to your son's birth certificate, that's exactly what you are.

[Zai & Gary 6]

From what I read, the USCIS considers the child as your son as long as you married his mother before the child turned 18. That includes biological and non-biological children.

[Ronald and Elvira 0]

Because i have originally sent an I864 for him

Anyone else run across this for there Children (stepchildren)?

This is what i found about definition of children

CHILDREN

USCIS' definition of a Child:

The immigration law defines a "child" as an unmarried person under the age of 21 (a minor) who is:

- A child born to parents who are married to each other (born in wedlock);

- A stepchild if the marriage creating the step-relationship took place before the child reached the age of 18;

- A child born out of wedlock (the parents were not married at the time the child was born). Note: If the father is filing the petition, proof of a bona fide (real and established) relationship with the father must be supplied;

- An adopted child if the child was adopted before the age of 16 and has lived with the adoptive parent(s) in their legal custody for at least two years;

- An orphan under the age of 16 when an adoptive or prospective adoptive parent files a visa petition on his or her behalf, who has been adopted abroad by a U.S. citizen or is coming to the U.S. for adoption by a U.S. citizen; or

- A child adopted who is under the age of 18 and the natural sibling of an orphan or adopted child under the age of 16, if adopted with or after the sibling. The child must also otherwise fit the definition of orphan or adopted child.

Definition of a Son or Daughter

The immigration law defines a "son or daughter" as a person who was once a "child" but who is now either married or over the age of 21.

Overview of Immigration Process

A legal immigrant (or "lawful permanent resident") is a foreign national who has been granted the privilege of living and working permanently in the United States. There is a three-step process for your child or son or daughter to become a legal immigrant.

1) You must obtain USCIS approval of an immigrant visa petition that you file for your child, son or daughter.

2) The State Department must then give your son or daughter an immigrant visa number, even if he or she is already in the United States. If you are a U.S. citizen and the child is both under 21 years of age and unmarried, a visa number is not required.

3) If your child or son or daughter is outside the United States, he or she will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa when one becomes available. If your child or son or daughter is legally in the U.S. when an immigrant visa number becomes available (or if one is not required), he or she may apply to adjust status to that of a lawful permanent resident.

What Does the Law Say?

The Immigration and Nationality Act is a law that governs the admission of all immigrants to the United States. For the part of the law concerning immigrant status for children, sons, and daughters, please see INA § 202, INA § 203 and INA § 204. The specific eligibility requirements and procedures for qualifying for immigrant visas and permanent residence are included in the Code of Federal Regulations (CFR) at 8 CFR § 204.1, 8 CFR § 204.2, and 8 CFR § 204.3.

Who is Eligible to Be a Sponsor?

A U.S. citizen may petition for:

- A child (unmarried and under 21 years of age);

- An unmarried son or daughter (over 21 years of age);

- A married son or daughter of any age;

- A U.S. citizen's unmarried, minor child is considered an immediate relative, does not need a visa number, and is eligible to receive an immigrant visa immediately. Otherwise, sons and daughters of U.S. citizens will be eligible for a visa when their priority date is listed on the Department of State's Visa Bulletin .

If your unmarried, minor child was admitted or paroled into the U.S., he or she may file an Application to Register for Permanent Residence or Adjust Status, at the time you file your Petition for Alien Relative.

If your unmarried, minor child has children, see the petitioning section on beneficiaries.

A lawful permanent resident may petition for:

- A child (unmarried and under 21 years of age);

- An unmarried son or daughter (over 21 years of age);

- A lawful permanent resident may not petition for a married son or daughter.

If you had children before you became a permanent resident and you did not immigrate as an immediate relative of a U.S. citizen, your unmarried, minor children may be eligible to receive following-to-join benefits. This means that you do not have to submit a separate USCIS Petition for Alien Relative for your children, and your children will not have to wait any extra time for a visa number to become available.

[besaangel 18]

Very good research- in a nut-shell, u answered your own question. If your name is on the BC, you're seen as the father (end of story; so to speak lol)... But if it helps, here is a quote from your research, A stepchild if the marriage creating the step-relationship took place before the child reached the age of 18 so you can sponsor the child (unmarried or married and under or over 21 years of age).

So you're good to go. If I am wrong, someone will correct me or further clarify. All the best and I applaud you.

[pushbrk 12,883]

How would my son be defined as far as a visa would go?

My wife was lets say taken against her will during our engagement. Then We married On Dec 8th 2008 and My son was born on December 18th 2008. I know he is not my natural child but because he was born after our marriage my name is on his birth certificate as the father

I am having a hard time finding any info that covers his relationship to me for immigration purposes. Would he be considered my son or my stepson and if so do i need to file an I864W instead of an I864?

The child of a US Citizen doesn't need a visa. They need a Consular Report of Birth Abroad and a US Passport. I'm not certain whether this child qualifies but with your name on the birth certificate, I can't see how he can be considered a step-child. Look into the CRBA.

[Ronald and Elvira 0]

The child of a US Citizen doesn't need a visa. They need a Consular Report of Birth Abroad and a US Passport. I'm not certain whether this child qualifies but with your name on the birth certificate, I can't see how he can be considered a step-child. Look into the CRBA.

i was thinking CRBA but i know for sure we would not pass a DNA test.

[Miss smarty pants 84]

i was thinking CRBA but i know for sure we would not pass a DNA test.

It looks to me like a child born in wedlock to a USC does not require a DNA test. The two of you are married when he was born and your name is on the birth certificate. A child of a USC is also a USC and needs a passport, not a visa. Try looking into the steps of reporting the birth abroad.

[Leigh Ann 8]

I have no idea how this applies to immigration law, but I know that some states have presumptions (that can't be rebutted by DNA evidence even) that children born during a marriage are the children of both parents. If that applies re: immigration, then that'll resolve any issues. Sorry I don't know for sure though.

[KenN 0]

The Consulate's gonna look for all evidences to prove that the baby is biological child. If there were none evidences, then they're gonna require a DNA test. One of the evidences is "both parents' physical presence in the state/country at the time of the child's conception (e.g. visa stamps, airline tickets, airlines printouts)". If you can prove this, and have your name as father of the child on BC...then you can go ahead to apply the CRBA for the child. If you cannot prove, then a DNA test will be required.

Due to your situation, I think the consulate will require a DNA test (The baby was born 10 days after your wedding). They will count the baby was born out of wedlock. (The child's conception was not after the wedding). Anyways, it's just my thought.

[tokyo.lovers 6]

i thought that sometimes if the kids all have different fathers they can be given the names of their actual fathers when born?

i don't really know...sorry!!

[aurora07 6]

Even if he is legally your son, the US Embassy would not automatically give him US citizenship. You'd have to apply for the Derivative Citizenship. I have gone through this process and so have my friends. For 2 of my friends, they were asked to take a DNA test. They want to make sure that the baby is your biological child. This is to avoid anyone claiming US citizenship without having the right to.

[Ronald and Elvira 0]

i Think everyone is missing the point.

This all started after I submitted a I864 for my Child

and I got an RFE to send a I864W

I am not claiming he is my biological child. I know he is not. But because we were married before his birth We put my name on his birth certificate as father.

Im not asking about if he can get USA passport or Will he come to USA as USA Citizen.

I am going to make this perfectly clear.. My wife was raped during our engagement period that why she was pregnant at the time of our marriage. It was a horrific experience for her.

So i know there is no way We will pass a DNA test.

I believe based on USCIC definition of a child he will be admitted to the USA under the Child Citizenship Act of 2000.

The main Question was is he my child or not and WHY do we have to file an I864W?

USCIS' definition of a Child:

The immigration law defines a "child" as an unmarried person under the age of 21 (a minor) who is:

- A child born to parents who are married to each other (born in wedlock);

- A stepchild if the marriage creating the step-relationship took place before the child reached the age of 18;

- A child born out of wedlock (the parents were not married at the time the child was born). Note: If the father is filing the petition, proof of a bona fide (real and established) relationship with the father must be supplied;

- An adopted child if the child was adopted before the age of 16 and has lived with the adoptive parent(s) in their legal custody for at least two years;

- An orphan under the age of 16 when an adoptive or prospective adoptive parent files a visa petition on his or her behalf, who has been adopted abroad by a U.S. citizen or is coming to the U.S. for adoption by a U.S. citizen; or

- A child adopted who is under the age of 18 and the natural sibling of an orphan or adopted child under the age of 16, if adopted with or after the sibling. The child must also otherwise fit the definition of orphan or adopted child.

Overview of Immigration Process

A legal immigrant (or "lawful permanent resident") is a foreign national who has been granted the privilege of living and working permanently in the United States. There is a three-step process for your child or son or daughter to become a legal immigrant.

1) You must obtain USCIS approval of an immigrant visa petition that you file for your child, son or daughter.

2) The State Department must then give your son or daughter an immigrant visa number, even if he or she is already in the United States. If you are a U.S. citizen and the child is both under 21 years of age and unmarried, a visa number is not required.

3) If your child or son or daughter is outside the United States, he or she will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa when one becomes available. If your child or son or daughter is legally in the U.S. when an immigrant visa number becomes available (or if one is not required), he or she may apply to adjust status to that of a lawful permanent resident.

Edited July 2, 2010 by Ronald and Elvira

[Deputy Purple 1,294]

Ronald, USCIS's definition of a "Child" has nothing to do with determining if the child will need a Visa to enter the US or is eligible for CRBA (US Citizenship).

If NVC is asking for I-864W for the child then it looks like they are assuming this is your biological or adopted child.

What did you file for the child? Are you looking to bring them here using CR-2 Visa?

I would be concerned that if the Embassy in Manila questions the parentage of the child and asks for DNA then they might think you are misrepresenting parentage for Immigration purposes which would be Fraud. I would recommend consulting a good Immigration Lawyer regarding this.

Just seems to me that this is a great time to be overly cautious.

[Ronald and Elvira 0]

This whole thing started after we filed for K3 visa and it got switched to CR1/CR2 visa in February and I had to submit a petition for my Stepchild.

The Petition was approved and sent to the NVC this is where the confusion started

where a signature was required i even signed as Stepfather of....

I have stated in all my documents and letters to the NVC that he is my stepchild and not my biological child.

I guess i will wait to see what the NVC supervisor has to say about this case

Everyone please keep in mind

my stepchild is here today because my Wife was Horrifically raped while she was staying at a friends during our engagement period We had originally planned to be married in Dec 2008 like we did. I had asked her the previous year for her hand to married.

I hope there is an answer somewhere...